• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Action
• Decision

The Ombudsman's final decision:

Summary: Mrs X complained about how the Council handled a safeguarding concern she raised about her relative. We find the Council at fault for a flawed safeguarding decision, an unreasonable delay in completing a care and support assessment, and a failure to involve Mrs X in that assessment. The Council has agreed to apologise to Mrs X.

The complaint

1. Mrs X complained about the Council’s actions following safeguarding concerns she raised about a relative. Specifically, she says the Council:
   • 1. failed to properly investigate the concerns she reported;
     2. did not take previous concerns into account during its assessment; and
     3. excluded the family from the safeguarding assessment process.
2. Mrs X also complained the wording in the care and support assessment unfairly suggests that her family is responsible for abuse.
3. Mrs X says the Council’s failings put her relative at risk and caused significant distress and uncertainty for the family.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment in recognition of, for example, the impact of poor care that person might have received while they were alive. This is because the person who received the poor care cannot benefit from such a payment. However, if we consider the person who has complained to us has been adversely affected by seeing the impact of that poor care on their relative, we may recommend an apology and/or symbolic payment to them as a remedy for their own distress.
7. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Safeguarding

10. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Assessment

11. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
12. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care Plan

13. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

What happened

14. Below is a summary of key events based on my review of all the evidence provided about this complaint.
15. Mr Y was receiving care at home from an informal carer and attended a day centre once a week.
16. A family member contacted the Council to request support, raising concerns about a decline in Mr Y’s health and the informal carer’s ability to meet his needs.
17. Two weeks later, Mrs X contacted the Council with further concerns that the informal carer was struggling. She also alleged that the informal carer had subjected Mr Y to verbal abuse and coercive control.
18. In response, the Council opened a safeguarding referral and reviewed both its previous involvement with Mr Y and the recent support request (which had been incorrectly recorded as having come from the informal carer). The Council noted that, since the informal carer had also contacted the Council directly, this suggested an awareness of the difficulties they were experiencing. While the concerns met the safeguarding threshold, the Council decided that the most proportionate response was to carry out an urgent care and support assessment for Mr Y and the informal carer.
19. The Council informed Mrs X of this outcome and said a social care practitioner would visit Mr Y the following week to carry out the assessment.
20. The following month, a second safeguarding referral was made by Mr Y’s GP. This raised concerns about potential historical and ongoing financial abuse, as well as allegations, reported by family members, of emotional abuse and coercive control by the informal carer.
21. The Council opened a new safeguarding enquiry and, in consultation with the police, agreed further enquiries were needed.
22. The care and support assessment was completed. It identified that Mr Y had eligible needs, and a package of support was arranged.
23. Mrs X later emailed the Council expressing concern that neither she nor other family members had been involved in the assessment. A meeting was then arranged to bring together the family and informal carer so all views could be shared.
24. Before this meeting could take place, a third safeguarding referral was made by Mr Y’s day centre, alleging a physical assault by the informal carer. The Council took immediate action, arranging for Mr Y to be placed in emergency respite care while it and the police investigated. Mr Y remained in the care home until his death.
25. Mrs X later complained to the Council, stating it failed to:
    • Gather and establish the full facts of the situation;
    • Properly identify risks to Mr Y;
    • Consider historical concerns and referrals; or
    • Involve the family in either the safeguarding enquiry or the care and support assessment.
26. In its response, the Council said it:
    • Acted in line with its duties under Section 42 of the Care Act;
    • Identified potential risks based on the information available;
    • Considered relevant historical referrals; and
    • Took proportionate action and responded immediately once more serious concerns arose.
27. The Council accepted there was a delay in completing the care and support assessment, apologised for this, and said it would issue staff guidance to avoid similar delays in future cases.

My findings

Safeguarding decision

28. I have reviewed the Council’s handling of the safeguarding referral raised by Mrs X. While the Council considered its previous involvement with Mr Y, there were errors in the case records which affected the safeguarding decision. Specifically, the Council incorrectly recorded that the informal carer had requested support, when in fact this request came from a family member. This led to a flawed safeguarding decision. This is fault. While I cannot say, even on the balance of probabilities, whether this error would have changed the final decision, it leaves uncertainty for Mrs X about whether further safeguarding action would have been taken.
29. The Council made its decision without seeking further information from Mrs X or other family members. The Council is not required to involve the referrer in its safeguarding decision-making, and so this is not fault. Mrs X was promptly informed of the outcome; however, she did not raise concerns about the decision or her lack of involvement until some months later.

Care and support assessment

30. The Council decided an urgent care and support assessment was needed, but this was not completed for another two months. This delay was not reasonable given the circumstances and is fault. On the balance of probabilities, Mr Y’s eligible needs would have been identified earlier had the assessment been completed without delay. The Council has acknowledged the fault, apologised to Mrs X, and issued a reminder to staff to avoid future delay which I find is appropriate and do not recommend any further remedy.
31. Mrs X and her family were not involved in the assessment process, despite being the ones who raised the initial concerns. This is fault. Mrs X should have been included from the outset. Although a meeting was later arranged after the assessment, this was too late to influence its outcome. While I cannot say, even on the balance of probabilities, whether the assessment result would have been different had Mrs X been involved, her exclusion caused avoidable distress and uncertainty.
32. I have reviewed the wording in the care and support assessment. While I agree the language used could have been clearer and more neutral, it does not amount to fault. The assessment does not make any findings regarding the safeguarding allegations.

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Action

33. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to apologise to Mrs X for the distress and uncertainty caused by the Council’s faults.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman

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